Exhibit 4.4
CONTINUCARE CORPORATION
AMENDED AND RESTATED 2000 STOCK INCENTIVE PLAN
(As amended on
March 2, 2007)
1. PURPOSE . The purpose
of this Plan is to advance the interests of CONTINUCARE
CORPORATION, a Florida corporation (the “Company”), and
its Subsidiaries by providing an additional incentive to attract
and retain qualified and competent persons who provide services to
the Company and its Subsidiaries, and upon whose efforts and
judgment the success of the Company and its Subsidiaries is largely
dependent, through the encouragement of stock ownership in the
Company by such persons.
2. DEFINITIONS . As used
herein, the following terms shall have the meanings
indicated:
(a)
“Award Notice” shall mean, with respect to a particular
Restricted Stock Award, a written instrument signed by the Company
and the recipient of the Restricted Stock Award evidencing the
Restricted Stock Award and establishing the terms and conditions
thereof.
(b)
“Award Recipient” shall mean the recipient of a
Restricted Stock Award.
(c)
“Beneficiary” shall mean the Person designated by an
Award Recipient to receive any Shares subject to a Restricted Stock
Award made to such Award Recipient that become distributable
following the Award Recipient’s death.
(d)
“Board” shall mean the Board of Directors of the
Company.
(e)
“Code” shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(f)
“Committee” shall mean the committee appointed by the
Board pursuant to Section 9(a) hereof, or, if such committee is not
appointed, the Board.
(g)
“Common Stock” shall mean the Company’s Common
Stock, par value $.0001 per share.
(h)
“Company” shall mean Continucare Corporation, a Florida
corporation, and its successors or assigns.
(i)
“Director” shall mean a member of the Board.
(j)
“EBITDA” shall mean the Company’s earning for the
relevant period prior to deductions for income tax expense,
depreciation and amortization.
(k)
“Effective Date” shall mean July 17, 2000.
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(l)
“Fair Market Value” of a Share on any date of reference
shall mean the “Closing Price” (as defined below) of
the Common Stock on the date of grant, or if the date of grant is
not a business day, on the next business day following the date of
grant, unless the Committee or the Board in its sole discretion
shall determine otherwise in a fair and uniform manner. For the
purpose of determining Fair Market Value, the “Closing
Price” of the Common Stock on any business day shall be
(i) if the Common Stock is listed or admitted for trading on
any United States national securities exchange, or if actual
transactions are otherwise reported on a consolidated transaction
reporting system, the last reported sale price of Common Stock on
such exchange or reporting system, as reported in any newspaper of
general circulation, (ii) if the Common Stock is quoted on the
American Stock Exchange (“AMEX”), or any similar system
of automated dissemination of quotations of securities prices in
common use, the last reported sale price of Common Stock on such
system or, if sales prices are not reported, the mean between the
closing high bid and low asked quotations for such day of Common
Stock on such system, as reported in any newspaper of general
circulation or (iii) if neither clause (i) or
(ii) is applicable, the mean between the high bid and low
asked quotations for the Common Stock as reported by the National
Quotation Bureau, Incorporated if at least two securities dealers
have inserted both bid and asked quotations for Common Stock on at
least five of the ten preceding days. If neither (i), (ii), or
(iii) above is applicable, then Fair Market Value shall be
determined by the Committee or the Board in a fair and uniform
manner.
(m)
“Incentive Stock Option” shall mean an incentive stock
option as defined in Section 422 of the Code.
(n)
“Non-Qualified Stock Option” shall mean an Option that
is not an Incentive Stock Option.
(o)
“Officer” shall mean the Company’s Chairman of
the Board, President, Chief Executive Officer, principal financial
officer, principal accounting officer, any vice-president of the
Company in charge of a principal business unit, division or
function (such as sales, administration or finance), any other
officer who performs a policy-making function, or any other person
who performs similar policy-making functions for the Company.
Officers of Subsidiaries shall be deemed Officers of the Company if
they perform such policy-making functions for the Company. As used
in this paragraph, the phrase “policy-making function”
does not include policy-making functions that are not significant.
If pursuant to Item 401(b) of Regulation S-K (17 C.F.R. §
229.401(b)) the Company identifies a person as an “executive
officer,” the person so identified shall be deemed an
“Officer” even though such person may not otherwise be
an “Officer” pursuant to the foregoing provisions of
this paragraph.
(p)
“Option” (when capitalized) shall mean any option
granted under this Plan.
(q)
“Option Agreement” means the agreement between the
Company and the Optionee for the grant of an option.
(r)
“Optionee” shall mean a person to whom a stock option
is granted under this Plan or any person who succeeds to the rights
of such person under this Plan by reason of the death of such
person.
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(s)
“Outside Director” shall mean a member of the Board who
qualifies as an “outside director” under Section 162(m)
of the Code and the regulations thereunder and as a
“Non-Employee Director” under Rule 16b-3
promulgated under the Securities Exchange Act.
(t)
“Performance-Based Restricted Stock Award” shall mean a
Restricted Stock Award to which Section 5(c) is applicable.
(u)
“Performance Goal” shall mean, with respect to any
Performance-Based Restricted Stock Award, the performance goal(s)
established pursuant to Section 5(c)(i), the attainment of
which is a condition of vesting of the Performance-Based Restricted
Stock Award.
(v)
“Performance Measurement Period” shall mean, with
respect to any Performance Goal, the period of time over which
attainment of the Performance Goal is measured.
(w)
“Person” shall mean an individual, a corporation, a
partnership, a limited liability company, an association, a
joint-stock company, a trust, an estate, an unincorporated
organization and any other business organization or
institution.
(x)
“Plan” shall mean this Amended and Restated 2000 Stock
Incentive Plan for the Company.
(y)
“Securities Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended from time to time.
(z)
“Share” shall mean a share of Common Stock.
(aa)
“Subsidiary” shall mean any corporation (other than the
Company) in any unbroken chain of corporations beginning with the
Company if, at the time of the granting of the Option or Restricted
Stock Award, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing
50 percent or more of the total combined voting power of all
classes of stock in one of the other corporations in such
chain.
3. SHARES AVAILABLE FOR
OPTION GRANTS . The Committee or the Board may grant to any
Award Recipient(s) or Optionee(s) from time to time Restricted
Stock Awards for, or Options to purchase, an aggregate of up to
Nine Million (9,000,000) Shares from the Company’s authorized
and unissued Shares. If any Restricted Stock Award or Option
granted under the Plan shall terminate, expire, or be canceled or
surrendered as to any Shares, new Restricted Stock Awards or
Options may thereafter be granted covering such Shares.
4. OPTIONS.
(a)
Incentive and Non-Qualified Options .
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(i) An
Option granted hereunder shall be either an Incentive Stock Option
or a Non-Qualified Stock Option as determined by the Committee or
the Board at the time of grant of the Option and shall clearly
state whether it is an Incentive Stock Option or a Non-Qualified
Stock Option. All Incentive Stock Options shall be granted within
10 years from the effective date of this Plan. Incentive Stock
Options may not be granted to any person who is not an employee of
the Company or any Subsidiary.
(ii) Options
otherwise qualifying as Incentive Stock Options hereunder will not
be treated as Incentive Stock Options to the extent that the
aggregate fair market value (determined at the time the Option is
granted) of the Shares, with respect to which Options meeting the
requirements of Section 422(b) of the Code are exercisable for the
first time by any individual during any calendar year (under all
plans of the Company and its parent and subsidiary corporations as
defined in Section 424 of the Code), exceeds $100,000.
(b)
Conditions for Grant of Options .
(i) Each
Option shall be evidenced by an Option Agreement that may contain
any term deemed necessary or desirable by the Committee or the
Board, provided such terms are not inconsistent with this Plan or
any applicable law. Optionees shall be (i) those persons
selected by the Committee or the Board from the class of all
regular employees of, or persons who provide consulting or other
services as independent contractors to, the Company or its
Subsidiaries, including Directors and Officers who are regular
employees, and (ii) Directors who are not employees of the
Company or of any Subsidiaries.
(ii) In
granting Options, the Committee or the Board shall take into
consideration the contribution the person has made to the success
of the Company or its Subsidiaries and such other factors as the
Committee or the Board shall determine. The Committee or the Board
shall also have the authority to consult with and receive
recommendations from officers and other personnel of the Company
and its Subsidiaries with regard to these matters. The Committee or
the Board may from time to time in granting Options under the Plan
prescribe such other terms and conditions concerning such Options
as it deems appropriate, including, without limitation,
(i) prescribing the date or dates on which the Option becomes
exercisable, (ii) providing that the Option rights accrue or
become exercisable in installments over a period of years, or upon
the attainment of stated goals or both, or (iii) relating an
Option to the continued employment of the Optionee for a specified
period of time, provided that such terms and conditions are not
more favorable to an Optionee than those expressly permitted
herein.
(iii) The
Options granted to employees under this Plan shall be in addition
to regular salaries, pension, life insurance or other benefits
related to their employment with the Company or its Subsidiaries.
Neither the Plan nor any Option granted under the Plan shall confer
upon any person any right to employment or continuance of
employment by the Company or its Subsidiaries.
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(iv) Notwithstanding
any other provision of this Plan, an Incentive Stock Option shall
not be granted to any person owning directly or indirectly (through
attribution under Section 424(d) of the Code) at the date of grant,
stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company (or of its parent or
subsidiary corporation (as defined in Section 424 of the Code)
at the date of grant) unless the option price of such Option is at
least 110% of the Fair Market Value of the Shares subject to such
Option on the date the Option is granted, and such Option by its
terms is not exercisable after the expiration of five years from
the date such Option is granted.
(c)
Option Price . The option price per Share of any Option
shall be any price determined by the Committee or the Board but
shall not be less than the par value per Share; provided, however,
that in no event shall the option price per Share of any Incentive
Stock Option be less than the Fair Market Value of the Shares
underlying such Option on the date such Option is granted.
(d)
Exercise of Options . An Option shall be deemed exercised
when (i) the Company has received written notice of such
exercise in accordance with the terms of the Option, (ii) full
payment of the aggregate option price of the Shares as to which the
Option is exercised has been made, and (iii) arrangements that
are satisfactory to the Committee or the Board in its sole
discretion have been made for the Optionee’s payment to the
Company of the amount that is necessary for the Company or
Subsidiary employing the Optionee to withhold in accordance with
applicable Federal or state tax withholding requirements. The
consideration to be paid for the Shares to be issued upon exercise
of an Option as well as the method of payment of the exercise price
and of any withholding and employment taxes applicable thereto,
shall be determined by the Committee or the Board and may in the
discretion of the Committee or the Board consist of: (1) cash,
(2) certified or official bank check, (3) money order,
(4) Shares that have been held by the Optionee for at least
six (6) months (or such other Shares as the Company determines
will not cause the Company to recognize for financial accounting
purposes a charge for compensation expense), (5) the
withholding of Shares issuable upon exercise of the Option,
(6) pursuant to a “cashless exercise” procedure,
by delivery of a properly executed exercise notice together with
such other documentation, and subject to such guidelines, as the
Board or the Committee shall require to effect an exercise of the
Option and delivery to the Company by a licensed broker acceptable
to the Company of proceeds from the sale of Shares or a margin loan
sufficient to pay the exercise price and any applicable income or
employment taxes, or (7) in such other consideration as the
Committee or the Board deems appropriate, or by a combination of
the above. In the case of an Incentive Stock Option, the
permissible methods of payment shall be specified at the time the
Option is granted. The Committee or the Board in its sole
discretion may accept a personal check in full or partial payment
of any Shares. If the exercise price is paid, and/or the
Optionee’s tax withholding obligation is satisfied, in whole
or in part with Shares, or through the withholding of Shares
issuable upon exercise of the Option, the value of the Shares
surrendered or withheld shall be their Fair Market Value on the
date the Option is exercised. The Committee or the Board in its
sole discretion may, on an individual basis or pursuant to a
general program established in connection with this Plan, cause the
Company to lend money to an Optionee (other than a Director or
Executive Officer of the Company (each within the meaning of
Section 402(a) of the Sarbanes-Oxley Act of 2002, as amended))(each
a “Prohibited Optionee”), guarantee a loan to an
Optionee (other than a Prohibited Optionee), or
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otherwise assist an Optionee (other than a Prohibited Optionee) to
obtain the cash necessary to exercise all or a portion of an Option
granted hereunder or to pay any tax liability of such Optionee
attributable to such exercise. If the exercise price is paid in
whole or part with Optionee’s promissory note, such note
shall (i) provide for full recourse to the maker, (ii) be
collateralized by the pledge of the Shares that the Optionee
purchases upon exercise of the Option, (iii) bear interest at
the prime rate of the Company’s principal lender, and
(iv) contain such other terms as the Committee or the Board in
its sole discretion shall reasonably require. No Optionee shall be
deemed to be a holder of any Shares subject to an Option unless and
until a stock certificate or certificates for those Shares are
issued to that person(s) under the terms of this Plan. No
adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or
other rights for which the record date is prior to the date the
stock certificate is issued, except as expressly provided in
Section 6 hereof.
(e)
Exercisability of Options .
(i) Any
Option shall become exercisable in such amounts, at such intervals
and upon such terms as the Committee or the Board shall provide in
the Option Agreement for that Option, provided that in no event
shall an Option be exercisable after the expiration of
10 years from the date of grant of the Option.
(ii) Unless
otherwise provided in any Option Agreement, and subject to the
Committee’s or the Board’s right to exercise its
discretion to provide a cancellation notice with respect to the
Option pursuant to Section 4(f)(ii) hereof, each outstanding
Option shall become immediately fully exercisable in the event of a
“Change in Control.” For this purpose, the term
“Change in Control” shall mean: Approval by the
shareholders of the Company of a reorganization, merger,
consolidation or other form of corporate transaction or series of
transactions, in each case, with respect to which persons who were
the shareholders of the Company immediately prior to such
reorganization, merger or consolidation or other transaction do
not, immediately thereafter, own more than 50% of the combined
voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated
company’s then outstanding voting securities, in
substantially the same proportions as their ownership immediately
prior to such reorganization, merger, consolidation or other
transaction, or a liquidation or dissolution of the Company or the
sale of all or substantially all of the assets of the Company
(unless such reorganization, merger, consolidation or other
corporate transaction, liquidation, dissolution or sale is
subsequently abandoned).
(iii) The
Committee or the Board may in its sole discretion, accelerate the
date on which any Option may be exercised and may accelerate the
vesting of any Shares subject to any Option or previously acquired
by the exercise of any Option.
(f)
Termination of Option Period .
(i) Unless
otherwise provided in any Option Agreement, the unexercised portion
of any Option shall automatically and without notice terminate and
become null and void at the time of the earliest to occur of the
following:
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(A) three
months after the date on which t
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